Nina VanDerZanden

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Prior to the pandemic, there were approximately 2.8 million deaths per year in the United States.[1] Each one of those deaths left a body, and those bodies did not magically evaporate. The law of final disposition—primarily burial and cremation—dictated how survivors managed those remains. Americans have become culturally distanced from the process of preparation and disposition, and they regularly employ professionals to manage this undertaking.[2] However, to call the business of funeral homes and crematoria deathcare is synecdoche. There was a time before deathcare was an industry.[3] There is far more to the process of disposition, from last breath to final rest, than the embalmer’s business.

Despite the universality of death, the final disposition of human remains is regulated piecemeal,[4] prioritizing the interests of embalmers over the families of the deceased.[5] This hinders families’ abilities to provide respectful, meaningful disposition of the deceased, a crucial aspect of socially contextualizing death in their lives.[6] The FTC promulgated the Funeral Rule in 1982 in an effort to protect funeral consumers, but it is simply not enough.[7] Just as advancing technology and increasing population dramatically changed the nature and scale of food manufacture, precipitating the development of the FDA,[8] the modern structure of deathcare demands a more unified and comprehensive approach to regulation.

To unify the regulation of deathcare for the purposes of protecting the rights of survivors, ensuring quality and accessibility of care, and balancing the interests of the many parties that participate in the process of final disposition, Congress should establish a federal agency dedicated to the regulation of the disposition of human remains. Part I provides an overview of the modern structure and relevant history of American deathcare. Part II begins the analysis by explaining the common law right of sepulcher. The argument transitions into consideration and critique of the FTC Funeral Rule,[9] identifying weaknesses in the current federal regulatory scheme in Part III and describing how state law is currently insufficient to fill the gaps in Part IV. This discussion culminates in Part V, examining how embalming is understood by the public and presented by embalmers—specifically critiquing how the professional characterization of embalming is a misrepresentation of what is merely a useful technique for preservation and aesthetics, based in outdated notions of ptomainic miasmas.[10] Finally, this Note delves into the scope and structure of the proposed federal agency. Part VI outlines the agency’s basic functions: addressing the purpose of the Funeral Rule and expanding its reach to crematoria and cemeteries, including functioning enforcement mechanisms in this amended Funeral Rule, and outlining state licensing and inspection requirements.

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[1] Kenneth D. Kochanek et al., Deaths: Final Data for 2017, 68 Nat’l Vital Stat. Rep. no. 9, at 1 (2019); Sherry L. Murphy et al., Deaths: Final Data for 2018, 69 Nat’l Vital Stat. Rep. no. 13, at 1 (2021); Jiaquan Xu et al., Deaths: Final Data for 2019, 70 Nat’l Vital Stat. Rep. no. 8, at 1 (2021).

[2] Maggie Jones, The Movement to Bring Death Closer, N.Y. Times Mag. (Dec. 21, 2020), https://www.nytimes.com/2019/12/19/magazine/home-funeral.html (“In the United States, we have come to see death as an emergency. We call the doctors, the nurses, the police, the emergency workers, the funeral staff to take over for us . . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an aversion to knowing and seeing too much.”).

[3] Jessica Mitford, The American Way of Death Revisited 14–17 (1998); see also Robert G. Mayer, Embalming: History, Theory, and Practice 5–6 (5th ed. 2012).

[4] See generally Joshua Slocum & Lisa Carlson, Final Rights: Reclaiming the American Way of Death 159–498 (2011).

[5] See Tanya Marsh, Regulated to Death: Occupational Licensing and the Demise of the U.S. Funeral Services Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018); see generally Tanya Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327 (2013).

[6] See generally Ernest Becker, The Denial of Death 9–47 (1973); Stu Farber, Thomas Egnew & Annalu Farber, What is a Respectful Death?, in Living with Dying 102, 103–04 (Joan Berzoff & Phyllis R. Silverman eds., 2004).

[7] Joshua L. Slocum, The Funeral Rule: Where It Came from, Why It Matters, and How to Bring It into the 21st Century, 8 Wake Forest J.L. & Pol’y 89, 99–102 (2018); Keith E. Horton, Who’s Watching the Cryptkeeper: The Need for Regulation and Oversight in the Crematory Industry, 11 Elder L.J. 425, 433–38 (2003).

[8] Stephen Daily, A Brief History of the FDA, Cataract & Refractive Surgery Today (Oct. 2011), https://crstoday.com/articles/2011-oct/a-brief-history-of-the-fda/.

[9] FTC Funeral Rule, 16 C.F.R § 453 (2021); see also Bureau of Consumer Prot., Funeral Industry Practices: Report to the Federal Trade Commission and Proposed Trade Regulation Rule (1978) (investigating the industry and identifying the need for consumer protection regulations).

[10] Lydia Kang & Nate Pederson, Quackery: A Brief History of the Worst Ways to Cure Everything 165–67 (2017).